You be the judge.

1.  How much time should a mailman get for throwing away 700 letters because he couldn't get them all delivered?  Paula McMahon of the Sun-Sentinel covers the story of  South Florida mailman Jimmy Lee Peters Jr.  Judge Cohn rightfully sentenced him to probation:

At his sentencing Friday in federal court in Fort Lauderdale, Peters' lawyer said his client stole nothing and simply became "overwhelmed" by the volume of mail that he was expected to deliver during his seven months as a mail carrier."He basically says that it was a very large district that he had to serve and he was just overwhelmed," defense attorney Ruben Garcia told U.S. District Judge James Cohn. "Instead of just taking it back and admitting that he just wasn't up to it, he took it home."Peters didn't open even one envelope and none of the intended recipients reported any losses, officials said.U.S. Postal Service employees reported that they found "several garbage bags full of U.S. mail" at Peters' Miami residence. Other workers later delivered the delayed mail, which was addressed to ZIP codes 33060, 33064, 33013 and 33014, court records show.Garcia told the judge that Peters – whose prior criminal record consisted of two misdemeanor convictions for possession of marijuana and two arrests for driving with a suspended license – had already been punished significantly by being fired from a good job."I've realized how wrong I was for delaying the mail," Peters told the judge. "I am extremely ashamed and remorseful." 

Peters was sentenced to two years of probation and ordered to undergo substance abuse treatment. The judge said he felt that, considering everything, it was a reasonable punishment.

2.   Next up is a wine counterfeiter.  How much time should Rudy Kurniawan receive for selling *a lot* of counterfeit wine to rich wine collectors?  According to Judge Richard Berman in the SDNY, TEN YEARS! Here's the CBS NY story about the (way too long?) sentence:

He said Kurniawan’s victims were wealthy and aware that counterfeit wines were a frequent occurrence in the marketplace.“Nobody died. Nobody lost their savings. Nobody lost their job,” he said. The lawyer said the 2 1/2 years Kurniawan has served in prison was enough penalty, since he had lost everything and been branded a cheat.Okula called the defense lawyer’s comments “quite shocking,” especially when he suggested that Kurniawan should get lenient treatment because he ripped off rich people rather than the poor.“Fraud is fraud,” he said.Kurniawan was a connoisseur of counterfeiting who mastered label making, cork stamping, bottle waxing and recorking to create fake bottles of wine. Federal prosecutors said Kurniawan turned his California home into a wine factory. Restaurants sent him empty wine bottles, then he mixed together cheap wine and rebottled it as vintage wine.He also borrowed money against his collection of fake wines and owes a New York bank several million dollars.Wine consultant Maureen Downey spent hours documenting the deception to help her sniff out future fakes, CBS 2’s Tony Aiello reported in December 2013.“Some of the stuff up there, even the producers say they would not be able to spot it,” Downey said.For example, Kurniawan phonied up two bottles of 1934 Romanee-Conti and sold them for $24,000. A fake double-magnum of 1947 Chateau Petrus was auctioned for $30,000. “He made blends,” Downey said. “He was like a mad scientist.”

I'm not sure the jury who asked for a "big bottle of wine" discussed in the post below would have cared.

3.  How much should a federal judge get if he is convicted of battery on his wife?  According to the AP, federal judge Mark Fuller from the Middle District of Alabama was arrested Saturday night in Atlanta at the Ritz-Carlton:

U.S. District Court Judge Mark Fuller was charged with misdemeanor battery and taken to the Fulton County jail around 2:30 Sunday morning.Fuller, 55, is a judge in the Middle District of Alabama and presided over the 2006 bribery trial of former Alabama Gov. Don Siegelman and HealthSouth CEO Richard Scrushy. According to a jail official, the judge has a 9 a.m. Monday court appearance and was expected to remain in jail overnight.Police responded to the Ritz-Carlton Hotel at 181 Peachtree Street at 10:47 p.m. According to Atlanta police spokeswoman Kim Jones, officers spoke to Fuller’s wife, “who stated she was assaulted by her husband.” Fuller’s wife, who was not named by police, was treated by paramedics but refused treatment at a hospital.Fuller was nominated to the bench in 2002 by President George W. Bush and has been a controversial figure in Alabama politics, largely for his role in the Siegelman trial. Siegelman’s family members and supporters claim the former governor’s prosecution was politically motivated and that Fuller should have recused himself for conflicts of interest.

Jury in West Palm Beach asks for "big bottle of wine"

And they also include the LOL and :) on their note....

Gotta love South Florida! 

Are lawyers only happy when they're miserable?

That's the discussion over at Above the Law.  From the intro to Bruce Stachenfeld's post:

What I mean is this: You are working round-the-clock so much you haven’t even been home for a full day and hardly at all for a month on a doozie of a deal. You are completely sick of it. All you can think of is when the deal will be “over.” You are clearly “miserable.” If only you could have your personal life back! Then, finally, the deal closes — at last. Your client is wiring out the funds. As the transfer of funds is happening, a (terrible) thought races through your mind. You hate yourself for the thought — you try not to have the thought — but you simply can’t help it… and the thought is that you are kind of worried because you have nothing to do now and that is disquieting… gee, what if work has really slowed… at some point this will be a real problem. You’ve had your personal life back for maybe a second — you haven’t even taken a shower — and you are worrying where your next deal will come from.
Or the other way around. Work has been slow — very slow — for a couple of months. You have enjoyed some rounds of golf and gone out to a bunch of dinners and lunches, but you really would like a nice tricky and challenging deal to sink your teeth into. And of course you are mindful of the fact that like it or not lawyers just have to bill hours. That is how we make a living, and you just aren’t billing hours. Not a good thing. You are edgy — if only you could have a big deal to work on….

The final lament is that work is so damned inconsistent. One day you have nothing to do, and the next day you are swamped. There is no consistency, and therefore it is hard to make plans — it is hard to commit to pilates or pottery class or even going to the gym regularly or anything that requires regular attendance. If only you could have a regular life; however, you know full well that the cutting-edge stuff, the cool stuff, doesn’t fit into regular scheduling. We must always respond to someone’s emergency as that is what a service business is. How often has a client uttered the following three words: “take your time”?
So what should we do about this? Can anything be done about it, or are we lawyers going to have the ultimately pathetic lives, only “happy” when we are “miserably” overworked?
Dang it — I am not going through life that way — no way. And I urge the rest of the lawyers at my firm — and anyone else reading this — to avoid this terrible fate.
But avoiding this negative energy spiral is no easy feat. The fact remains that we are in a service business and we either do an awesome job for our clients — on their unpredictable time frames — or we lose our clients to other law firms that will make the necessary sacrifices. Just saying “no” to the clients or colleagues who make the time demands won’t work. And neither will being miserable and stressed out. Here is another plan.
Do you want a nine-to-five kind of boring job with unchallenging work? Most of us don’t want that. This is one of the reasons we became lawyers in the first place — because the work is incredibly interesting and challenging.
Conversely, do you want a life where you work round the clock, albeit on interesting and challenging matters, so hard that even your health starts to go? I would think you don’t want that either. At some point the work just isn’t fun any more and your job just stinks.
So how about you just flip your brain around. Instead of looking at the negatives, start looking at the positives of each work phase? This is the trick.

Major opinion from the 11th Circuit on structural error

Judge Wilson, joined by a visiting judge, issued this opinion in United States v. Roy, which starts:

This appeal involves a defense attorney’s temporary absence from the courtroom at his client’s trial when inculpatory testimony was admitted into evidence and contributed to his conviction. Appellant Alexander Michael Roy (Roy) alleges that his criminal conviction was obtained in violation of the Sixth Amendment and the Supreme Court’s holding in United States v. Cronic, 466 U.S. 648, 659, 104 S. Ct. 2039, 2047 (1984), which creates a presumption of prejudice and requires a new trial when counsel is absent during a “critical stage” of the trial. Because (1) Roy was a sole defendant during his criminal trial, (2) the afternoon session of Roy’s trial commenced while his counsel was actually and physically absent, and (3) during that absence, evidence directly inculpating Roy in a crime for which he was eventually convicted was presented to the jury, we conclude that Roy was denied counsel at a critical stage, and based on Cronic, we are required to reverse Roy’s conviction as to all counts of the indictment and remand the case to the district court for a new trial.

 And concludes:

 Where, as here, structural error has occurred, the entire trial is unfair and the convictions as to all counts are tainted. See Fulminante, 499 U.S. at 309–10, 111 S. Ct. at 1265. The Supreme Court has defined structural errors as those where the reviewing court “can only engage in pure speculation” about what the jury might have done; their consequences are “necessarily unquantifiable and indeterminate.” Sullivan v. Louisiana, 508 U.S. 275, 281–82, 113 S. Ct. 2078, 2082–83 (1993). Structural errors are “markedly different” from trial errors (which can be “quantitatively assessed”), and thus, structural errors “defy analysis by harmless-error standards.” Fulminante, 499 U.S. at 308, 309, 111 S. Ct. at 1264–65 (internal quotation marks omitted). There are some errors that courts can accurately measure and hold harmless. This is not one of them. Especially here, where the charges are interrelated and evidence relevant to one count may have influenced the jury as to others.

Chief Judge Carnes dissented, with this "forceful" introduction:

Returning late from a lunch break on the third day of a six-day trial, defense counsel missed a small part of the testimony of the twelfth of thirteen government witnesses. He was out of the courtroom for only seven of the 1,884 minutes, or 31.4 hours, of the trial (not counting recesses and jury deliberations), which amounts to less than one-half of one percent of the trial time. During his absence counsel missed only 18 answers out of a total of approximately 2,745 answers that were given by government witnesses during the trial, which means counsel missed less than one percent of the total number of answers given by witnesses for the prosecution. That’s it. And all of the testimony that he missed was repeated in even more detail by the same witness after counsel returned to the courtroom.
So far as it appears from the record, the judge and the prosecutor did not notice defense counsel’s brief absence. When he returned to the courtroom, counsel did not object to testimony having been taken in his absence. He did not ask the court to strike the questions and answers that he had missed and instruct the jury to disregard them. He apparently did not seek to have the questions and answers he missed read back to him outside the presence of the jury so that he could familiarize himself with them and object to any that were objectionable. For all that we can tell, counsel may have deliberately taken advantage of his own tardiness and carefully avoided any attempt to correct the problem, hoping that he could have a get-out-of-jail-free card in his pocket for his client. If so, it worked. The majority decides that the defendant’s convictions for attempted child enticement and for possession of child pornography, most of which the defendant produced himself, must be set aside because of his counsel’s brief absence, even though the record conclusively establishes that the absence could not possibly have prejudiced the defendant.
At oral argument, we could not ask the defendant’s trial counsel about the facts surrounding his absence from the courtroom, why he did not object, if he made any off-the-record effort to familiarize himself with the testimony taken in his absence, or anything else about the matter. The reason we could not ask what really happened, and why, is that trial counsel conveniently did not represent the defendant on appeal. Another attorney did. We could have remanded the case for an evidentiary hearing to find out all of the facts, but the majority refused my request to do that. The majority is content with only a swift sideways glance at the facts because it thinks the facts can be presumed away. But “[t]his is not a matter for polite [or impolite] presumptions; we must look the facts in the face.” Frank v. Mangum, 237 U.S. 309, 349 (1915) (Holmes, J., dissenting).
The majority’s view, now the law of this circuit, is that if a witness gives any testimony at all, even a single answer, supporting any count against the defendant while the defendant’s attorney is outside the courtroom, reversal of every count of conviction is automatic. No matter what. Reversal is automatic regardless of the reason for the absence. Regardless of whether the trial judge or prosecutor noticed the absence. Regardless of whether the answer given during the absence was objectionable. Regardless of whether the defendant suffered any actual prejudice from counsel’s absence. Regardless of whether counsel failed to object or seek any kind of corrective action. Regardless of whether counsel made a strategic decision not to seek to correct the problem. Regardless of whether the first mention of the matter was on appeal. And regardless of whether counsel deliberately engineered the whole thing. In other words, absence plus any inculpatory answer equals reversal regardless of any and all other facts and circumstances.
The majority holds that no matter how strong the evidence of the defendant’s guilt, all a defense attorney has to do to guarantee an automatic reversal of his client’s conviction on any and all counts is to be outside the courtroom while a witness gives a single inculpatory answer on any count against his client. The attorney can keep quiet about it until he sees what the verdict is and then claim his right to have any convictions set aside. And under today’s decision they must be set aside.
In fact, under the majority’s holding, it does not even matter if the attorney upon returning to the courtroom does object and does seek corrective actionbecause as soon as a single answer is given in his absence an absolute, conclusive, irrebutable presumption of prejudice arises. Nothing can be done. The law today’s decision puts in place is that absence during any inculpatory testimony at all is all that matters; no prejudice is required, no inquiry is allowed, no cure is permitted. Of course I dissent.

The majority has a lengthy response to the dissent, but I thought interesting the response to the argument that defense lawyers are unethically creating these errors on purpose:

We pause to address the concerns expressed by our dissenting colleague in his forceful dissent:

***

Our dissenting colleague next suggests that Roy’s counsel “may have deliberately taken advantage of his own tardiness and carefully avoided anyattempt to correct the problem, hoping that he could have a get-out-of-jail-free card in his pocket for his client. If so, it worked." Further, the dissent says that counsel may have “deliberately engineered the whole thing” and that our decision today could invite misconduct by opportunistic counsel, which, according to the dissent, is prevalent in the three states of the Eleventh Circuit as reflected by statistics evidencing rampant lawyer misconduct in Florida, Georgia, and Alabama by criminal lawyers.
Our confidence in the integrity of lawyers, who are admitted to practice in our courtrooms as officers of the Court bound by rules of professional responsibility, satisfies us that our decision today will not go so far as to motivate them to place their licenses to practice law in jeopardy by, as the dissent suggests, strategically slipping out of the courtroom when the judge is not looking and when they think inculpatory evidence is coming, to invite reversible error in the event of a conviction. Nor does the parade of horribles imagined by the dissent permit us to disregard Cronic.
The dissent also maintains that judges are not like, in its words, “kindergarten teachers, [who] will be forced to keep an eye on their lawyer-children.” Contrary to that view, we are unpersuaded that United States District Judges should be excused from the less than onerous burden of ensuring that the defendant’s lawyer is seated at counsel table, next to his client, or is somewhere in the courtroom when the government seeks the admission of incriminating evidence that will be used by the jury to convict his client of a felony, resulting in life imprisonment. Especially in a trial with a single defendant who has a single lawyer.
We conclude that when the accused is deprived of his lawyer at a critical stage of his trial, there has been a denial of Sixth Amendment rights that makes the adversary process itself unreliable. The Constitution gives the defendant the right to “the guiding hand of counsel at every step in the proceedings against him.” Powell v. Alabama, 287 U.S. 45, 69, 53 S. Ct. 55, 64 (1932). Accordingly, counsel’s absence during the admission of inculpatory evidence against Roy at his trial is “‘constitutional error of the first magnitude and no amount of showing of want of prejudice would cure it.’” Cronic, 466 U.S. at 659, 104 S. Ct. at 2047 (emphasis added) (quoting Alaska, 415 U.S. at 318, 94 S. Ct. at 1111).
Although we reverse and remand for a new trial, a reversal does not mean that the defendant goes free. Rather, Roy will be retried in accordance with the rules of evidence and procedure, and without constitutional error.

BREAKING -- APPLICANTS FOR FEDERAL BENCH

Thanks to one of my favorite tipsters, I finally got the list of applicants for Judge Rosenbaum's seat.  Here you go:

Frederick Pfaeffle Arana
Ricardo J. Bascuas
Martin J. Bidwell
Beatrice A. Butchko
Peter Chavkin
Jeffrey J. Colbath
Theodore M. Cooperstein
Jack Schramm Cox
Mary Barzee Flores
David A. Haimes
Migna Sanchez-Llorens
Peter R. Lopez
Steven H. Meyer
Thomas Rebull
Lornette A. Reynolds
Meenu Sasser
Barry S. Seltzer
Michele Towbin Singer
Edward N. Stamm
John W. Thornton, Jr.
Daryl E. Trawick
Jack Tuter
Melissa Damian Visconti
Marina Garcia Wood

Will the 11th Circuit hear the cell-site case en banc?

The government has asked for rehearing en banc in Quartavious Davis' case, which held that acquiring historical cell-site data is a Fourth Amendment search.  The government frames the issue this way in its petition:

Whether the government’s acquisition of historical cell site records from a cellular telephone service provider pursuant to a court order authorized by the Stored Communications Act, 18 U.S.C. § 2703(c)(1)(B), (d), constitutes an unreasonable search or seizure in violation of the Fourth Amendment.

Orin Kerr thinks that the panel got it wrong and that the Court should take the case en banc.  I disagree with my old classmate.  It will be interesting to see what the Court does here.

Judge Gold taking inactive senior status

Judge Gold just announced that as of October he will be an inactive senior judge, take no more cases and close his chambers.  This is very sad as Judge Gold is one of the finest judges, not only in the District, but in the country.  I wish him well.


Meantime the District is busy as ever.  Our new Chief Judge, K. Michael Moore, tried 3 cases in a week.  Judge Altonaga just tried a case with two juries.  And Judge Scola interestingly had a trial with a deaf juror. 


Of course, the marathon trial involving former Mayor Pizzi is slogging forward.  The Herald has the update on that trial.  I wonder how much this trial -- about a supposed bribe of $6,000 -- is costing.  Anyway, here's the update:

Candia testified that he gave the $1,000 bribe to Pizzi in December 2012, arranged another $2,000 payoff at a Miami Lakes billiard club in Feburary 2013 and, after he flipped for the feds, gave the mayor a final $3,000 bribe in a storage closet at Medley Town Hall in July of last year.
Pizzi’s defense team claims the mayor never received the $1,000; accepted the $2,000 in a cigar bag but gave it away without realizing the money was stuffed inside; and took the $3,000 as a reimbursement for a personal expense on behalf of a Miami Lakes political action committee.
Pizzi’s defense strategy has been to raise critical doubts about his accepting the bribes in return for political favors. It has also aimed to discredit Candia and the lead FBI undercover agent. Both admitted on the witness stand that the mayor had not been involved in any actual corrupt activity before the undercover operation was launched against Pizzi and numerous other South Florida mayors and officials in 2011.
The sting operation originated when the FBI retained a Miami-Dade lobbyist, Michael Kesti — code name “Stingray” — as an informant. Kesti directed them to Candia, who was close to Pizzi and other small-town mayors.
Last week, Candia testified in detail about his role in the three alleged bribes. The lobbyist said that Pizzi, after getting “spooked” when the undercover agents described the federal grant program as a “money grab” in February 2012, agreed to reconnect with them after his re-election victory that November.
Candia, who had raised thousands of dollars for Pizzi’s campaign through the lobbyist’s own political action committee, testified that the mayor approached him about getting involved again in the grant program.
“Mr. Pizzi brought it up with me,” Candia testified.
That led to a dinner at Shula’s steakhouse on Dec. 13, 2012, where Candia, Kesti, the FBI informant, the undercover agents and Pizzi discussed the federal grant scheme. It was pitched as a no-cost way for municipalities to obtain government funds for a jobs study and economic development.At dinner, Pizzi told the lobbyist and the undercover agents posing as the Chicago businessmen that he wanted them to donate money to his upcoming Christmas toy drive that weekend. FBI recordings of the meal revealed that they did not take the mayor seriously.
Later that night at the nearby billiard club, Pizzi told Candia that he wanted $1,000. And the lobbyist relayed that message to the undercover agents.
Candia told them that Pizzi wanted the money to “buy toys for kids,” according to the undercover recordings.
Pizzi’s attorney, Shohat, confronted the lobbyist about his statement on the tape, saying it showed that the mayor did not want anything for himself.
Although Candia admitted saying that, he testified he meant it “sarcastically.”
The next day, Candia, still a target of the probe, met with the undercover agents at a Holiday Inn in Miami Lakes. They gave him 10 $100 bills in a white envelope to give to Pizzi, the lobbyist testified. He also said they gave him an endorsement letter for the federal grant application in Medley, so Pizzi could sign it.
According to the undercover recordings, Candia later spoke with the FBI informant, Kesti, who asked: “Was [Pizzi] happy with the, uh, the gift?”
Candia’s response: “Abso-, absolutely.”

Cloture invoked for Jill Pryor...

...but the Senate is now in recess till September.  So her final vote will happen then.